NAIROBI – By squarely blaming the electoral commission and its chairman for the failure of the presidential election, the Supreme Court has put the country on a collision course towards a constitutional crisis.
The decision to annul the ballot – unprecedented in Africa – was welcomed by many observers as a triumph of democracy and the separation of powers by an independent judiciary.
But it also calls into question whether a re-run can actually be held in the time allocated by Kenya’s constitution.
The court’s full judgement that the election should be null and void read out in length today, detailed an Independent Electoral and Boundaries Commission (IEBC) that failed to run a legal or constitutional poll.
With the second ballot due by the end of October, it opens up the question of how the IEBC can be trusted to organise another national vote in the time available.
The company which provided the electronic system for the first election says time is already tight to have everything ready by the 31 October constitutional deadline.
And that’s only if all sides agree to use OT-Morpho’s equipment for the second ballot, rather than putting it out to tender elsewhere. They don’t yet have a contract to provide the equipment.
The opposition has already pledged to boycott the re-run unless there are significant changes in the IEBC process and personnel.
The call from the chief justice for the commission to “go back to the drawing board,” will no doubt bolster their case for further delays.
What happens next?
Before the full judgement was read out, President Uhuru Kenyatta vowed the ballot would go ahead as planned, with the IEBC in charge, and within the timeline.
But the ruling casts doubt over that position.
The intricacies of Kenya’s constitution raise more questions than answers over what happens if the vote doesn’t go ahead by 31 October.
Is some form of interim government the way to bridge the period between the passing of the constitutional deadline and the date a new election can take place?
It’s all unprecedented territory for Kenya and unless politicians tone down their rhetoric and control their supporters, tensions could rise and protests escalate.
The chief justice has already criticised an increase in threats and aggression against judges on social media and beyond.
And it seems pretty clear a lot needs to change before the re-run.
Not only was the IEBC process “neither transparent or verifiable,” but it “contemptuously ignored the court order” to allow scrutiny of its computer servers, in the words of the Supreme Court judgement.
The failure to allow court-appointed experts to analyse the system prompted the court to make an extraordinary judgement.
“[It] leaves us with no option but to accept the petitioners’ claims that the IEBC’s IT system was infiltrated and compromised and the data therein interfered with,” read deputy Chief Justice Philomena Mwilu.
By refusing to allow access to disprove claims of hacking or vote-rigging, the court has therefore decided to presume it did take place.
That’s a big decision.
The IEBC chairman Wafula Chebukati was directly criticised for declaring Uhuru Kenyatta the winner of the presidential poll before all the results were verified.
The opposition will argue he cannot possibly continue in his role, but the process to replace him can be long and complicated.
The explanation provided by the Supreme Court for its decision does point to a deeply flawed process – if not in the casting of ballots, certainly in the way the results were tallied, transmitted and verified.
Opposition leader Raila Odinga has a lot of ammunition to support any decision to boycott a new ballot until the system has changed, but it doesn’t answer the all-important question of what happens then?